Re: AUSTRALIAN CONSERVATION FOUNDATION, THE WILDERNESS SOCIETY INC. AND TASMANIAN CONSERVATION TRUST INC. And: FORESTRY COMMISSION; MICHAEL MANIFOLD HELSHAM, ROBERT HENRY WALLACE and PETER PHILLIP HITCHCOCK AND COMMONWEALTH OF AUSTRALIA No. TG14 of 1987 Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987
COURT
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY GENERAL DIVISION Burchett J.(1)
CATCHWORDS
Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 - Interim report - Review under Administrative Decisions (Judicial Review) Act 1977 - Locus standi of environmental bodies which appeared in the Inquiry to seek review - Whether the interim report involved the making of a decision of an administrative character - Whether it should be inferred from silence about a particular consideration that it was not taken into account - Whether irrelevant factors taken into account or relevant factors omitted - Whether an irrelevant factor (though discussed) played no part in the decision - Whether consideration of irrelevant factor was "insignificant" - Nature of questions relating to the "natural heritage" under the Convention for the Protection of the World Cultural and Natural Heritage scheduled to the World Heritage Properties Conservation Act 1983 - Nature of "qualifying areas" under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987.
Counsel for the 1st Respondent: Mr. W. Bale, QC, Mr A. Hemming, Ms B. Baker
Solicitor for the 1st Respondent: Director of Public Prosecutions
Counsel for the 2nd Respondent: Mr. D. Graham, QC, Mr J. Gobbo
Solicitor for the 2nd Respondent: Australian Government Solicitor
Counsel for the 3rd Respondent: Mr. S. Charles, QC Mr C. Maxwell
Solicitors for the 3rd Respondent: Australian Government Solicitor
ORDER
That the application be dismissed.
That the motion made upon Notice of Motion filed 8 February 1988 be dismissed.
That liberty be reserved to the respondents to the application and to Gunns Kilndried Timber Industries Limited to seek orders in respect of their costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (the Act), a commission was established to inquire into and report on a number of matters relating to world heritage and potential world heritage areas in parts of Tasmania, and the impact that preservation of those areas would have on the Tasmanian forestry industry. "The object of this Act", it was stated in s.4,
"is to provide for measures that will enable effect to be given, in relation to the Lemonthyme area and the Southern Forests area, to Australia's obligations under the Convention, in particular the obligations to:
(a) identify and delineate the natural heritage and cultural heritage; and
(b) take appropriate measures to protect and conserve that heritage."
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Australian Conservation Foundation v Forestry Commission
Sign in free to access the full text
Details
AGLC
Australian Conservation Foundation & Ors v. Forestry Commission & Ors [1988] FCA 41
Case
[1988] FCA 41
Decision Date
CaseChat Overview and Summary
The Australian Conservation Foundation sought judicial review of an interim report issued by the Forestry Commission under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987. The matter was heard and determined in the Federal Court of Australia. The primary focus of the review was whether the interim report constituted a decision of an administrative character, warranting judicial review, and whether the environmental body had standing to seek such review.
The court was required to determine several key legal issues, including the standing of the environmental body to seek review, the nature of the interim report and whether it involved the making of a decision of an administrative character, and the interpretation of various legislative provisions. Additionally, the court had to assess whether the silence about a particular consideration indicated it was not taken into account, whether irrelevant factors were considered or relevant factors omitted, and the significance of irrelevant factors being discussed but not affecting the decision. The court also needed to interpret the nature of "natural heritage" under the Convention for the Protection of the World Cultural and Natural Heritage, and the meaning of "qualifying areas" under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987.
In its reasoning, the court determined that the interim report did not constitute a decision of an administrative character, and thus was not subject to judicial review. The court further found that the environmental body did not have standing to seek such review. The court also held that silence about a particular consideration did not necessarily mean it was not taken into account, and that the consideration of irrelevant factors, even if discussed, did not necessarily render a decision invalid if such factors played no part in the decision. Regarding the nature of "natural heritage" and "qualifying areas", the court provided interpretations based on the context of the legislative provisions. Ultimately, the court dismissed the application and the motion made upon notice of motion filed on 8 February 1988, reserving liberty for the respondents and Gunns Kilndried Timber Industries Limited to seek orders in respect of their costs.
Orders
Orders of the court
That the application be dismissed.
That the motion made upon Notice of Motion filed 8 February 1988 be dismissed.
That liberty be reserved to the respondents to the application and to Gunns Kilndried Timber Industries Limited to seek orders in respect of their costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.